A very interesting article on ESPN.com discussed the recent confrontation between the NFL and its former players at a Philadelphia courthouse. The two sides were gathered together last week to argue the merits of allowing the concussion cases to proceed against the league in federal court.
U.S. District Court Judge Anita Brody held a hearing last week to help her decide what should happen next. On the one side, the players have argued that the league used fraud to cover up the neurological problems that frequent blows to the head could eventually cause in players. The players’ attorneys claim that their cases ought to be heard by a jury to determine what amount the league owes in damages for the harm it caused.
The NFL, meanwhile, believes that the whole matter should be preempted because of a collective bargaining agreement the league reached with some of the players involved in the suit. The NFL is relying on the idea of preemption, which has been used in other cases that pit unionized workers against their employers. Such cases can be forced out of court and instead must be submitted to arbitrators, likely dramatically reducing liability on the part of the NFL.
Though the NFL has successfully argued this point before, as ESPN points out there’s now a problem of precedent, a case known as Kline v. Security Guards, Inc. Just like the players in the concussion case, the security guards were unionized. Also like the players, the security guards in Kline operated under a collective bargaining agreement which contained details of their jobs and pay structure. The security guards similarly filed suit against their bosses, alleging fraud and concealment, in that case it was because their employer was secretly recording them while on duty.
The security guards learned of the secret recordings and sued demanding monetary damages. Just like the NFL, the security company responded by claiming that the dispute should be sent to arbitrators and not heard in a courthouse, arguing that the collective bargaining agreement preempted the matter.
The problem for the security company, and what could be the problem for the NFL, is that the collective bargaining agreement (CBA) never specifically contained language about arbitration over issues such as fraud or concealment. The Court thus decided that the issue was not preempted by the collective bargaining agreement and did not need to go to arbitration.
The players’ attorneys have mentioned this issue, and the CBA’s lack of a fraud provision, repeatedly in legal briefs and it became a focus of Judge Brody’s questioning during the hearing last week. The fact that Brody mentioned Kline at all is likely good news for the players, though both sides will have to wait a few months to know for sure.
Pope McGlamry P.C., currently represents former professional football players and their families for injuries and damages sustained as a result of suffering concussions while playing football, and is actively involved in the current concussion litigation. If you or someone you love has been injured by a sports-related concussion, you may be entitled to compensation.
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